Can a Florida local agency pay an official's legal fees for defending an ethics complaint that was dismissed?

Plain-English summary

The Hillsborough County City-County Planning Commission asked whether it could reimburse one of its officers for legal fees spent defending an ethics complaint, including a complaint that was later dismissed. A senior assistant attorney general answered with the Florida common-law rule on paying public officials' legal bills: a public board may pay, but only when two things are true.

Florida courts recognize a common-law right of public officials to a legal defense at public expense when they are sued over the performance of their official duties. The point of the rule is to keep officials from being chilled into timid decision-making by the threat of personal legal costs. But the right is not automatic. Drawing on the Florida Supreme Court's decision in Thornber v. City of Fort Walton Beach, the office restated a two-prong test: the litigation must (1) arise out of or in connection with the official's duties, and (2) serve a public purpose. Both prongs have to be met.

The office said these same tests should apply to a defense against a locally adopted ethics-code charge, even though it found no case squarely on that point. The catch: deciding whether both prongs are satisfied is a factual determination for the commission's own governing body. The Attorney General's office said it could not make that call for the commission.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion concluded (2011)

The office concluded that the planning commission could reimburse an officer's legal fees for defending an ethics-code complaint if the commission's governing body determined that the proceedings arose out of or in connection with the officer's official duties and served a public purpose. Where both prongs were met, the office said the fees for a successful defense "must be paid" by the commission. It stressed that the finding had to be made by the commission itself and could not be delegated to the Attorney General's office.

For officials facing a dismissed complaint, the office pointed back to Attorney General Opinion 85-51, which had concluded a municipality was authorized to pay for the defense of a former officer charged with an ethics violation that was later dismissed for no probable cause, again conditioned on a finding that the alleged misconduct arose from official duties while serving a public purpose. The office did not say dismissal alone entitled an officer to reimbursement; the same two-prong test still governed.

The office also illustrated where the test fails. In Chavez v. City of Tampa, a council member who defended an ethics charge tied to her own zoning petition met the first prong (she was voting, an official act) but not the second, because her vote advanced her private interest rather than a public purpose, so the city was not required to pay. In Thornber, by contrast, officials defending a recall petition met both prongs, because the public has an interest in recall procedures being followed correctly.

This was an informal advisory letter, not a formal Attorney General opinion. The letter says so directly: the views are those of the writer and "do not constitute a formal opinion of the Attorney General."

Common questions

Q: When does a Florida public board have to pay an official's legal defense costs?
A: Under the common-law rule the office restated, two conditions must both be met: the litigation arose out of or in connection with the official's duties, and the litigation served a public purpose. If either is missing, the obligation does not arise.

Q: Does winning the case or having the complaint dismissed guarantee reimbursement?
A: No. A favorable outcome matters, but the two-prong public-purpose test still has to be satisfied. The office cited Opinion 85-51, where a dismissed ethics charge was reimbursable only because the conduct was found to arise from official duties serving a public purpose.

Q: Who decides whether the test is met?
A: The agency's own governing body, based on whatever factual evidence it requires. The opinion was explicit that the Attorney General's office cannot make that factual determination and the board cannot delegate it to the office.

Q: Is an informal opinion like this binding?
A: No. The letter states it is an informal advisory comment that does not constitute a formal opinion of the Attorney General. AG opinions of any kind are persuasive authority, not binding law.

Background and statutory framework

Florida's rule on paying public officials' legal fees is judge-made rather than statutory. The foundational cases the office relied on include Ellison v. Reid, which articulated the public-purpose rationale, and Lomelo v. City of Sunrise, which held the obligation arises independent of statute, ordinance, or charter and "is not subject to the discretion of the keepers of the city coffers." The Florida Supreme Court's Thornber decision then framed the modern two-prong test, citing Chavez v. City of Tampa. Later cases such as Maloy v. Board of County Commissioners of Leon County reinforced that an allegation of misconduct arising in the course of public duties is not enough by itself; the context must also serve a public purpose.

The office read these authorities to extend naturally to a defense against a locally adopted ethics code, even without a case directly on point.

Citations and references

Cases:

• Thornber v. City of Fort Walton Beach, 568 So. 2d 914 (Fla. 1990), two-prong test for public-expense legal defense
• Chavez v. City of Tampa, 560 So. 2d 1214 (Fla. 2d DCA 1990), private-interest vote did not serve a public purpose
• Ellison v. Reid, 397 So. 2d 352 (Fla. 1st DCA 1981), public-purpose rationale
• Lomelo v. City of Sunrise, 423 So. 2d 974 (Fla. 4th DCA 1982), obligation arises independent of statute or charter
• Maloy v. Board of County Commissioners of Leon County, 946 So. 2d 1260 (Fla. 1st DCA 2007)
• Markham v. State, Department of Revenue, 298 So. 2d 210 (Fla. 1st DCA 1974)
• Ferrara v. Caves, 475 So. 2d 1295 (Fla. 4th DCA 1985)
• Nuzum v. Valdes, 407 So. 2d 277 (Fla. 3d DCA 1981)

Prior Attorney General opinions referenced: 85-51, 90-74, 86-35.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/attorneys-fees-defense-of-local-ethics-complaint
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8160

Original opinion text

Ms. Tracy J. Robin

Straley & Robin

1510 West Cleveland Street

Tampa, Florida 33606

Dear Ms. Robin:

On behalf of the Hillsborough County City-County Planning Commission (the commission) you have asked for assistance in determining whether the commission is authorized to reimburse an officer of the commission for legal fees incurred in defense of a claim concerning an alleged violation of the agency's ethical standards. You also ask whether this duty to pay legal fees may extend to claims relating to an action that was dismissed. Attorney General Bondi has asked me to respond to your letter.

Florida courts have recognized a common law right of public officials to legal representation at public expense to defend themselves against litigation arising from the performance of their official duties while serving a public purpose.[1] The purpose of this rule is to avoid a potential "chilling effect" that a denial of representation might have on a public official in performing his duties properly and diligently.[2] As was noted by the Fourth District Court of Appeal in Lomelo v. City of Sunrise,[3] such an obligation arises independent of statute, ordinance, or charter and "is not subject to the discretion of the keepers of the city coffers."[4]

In Attorney General Opinion 85-51, this office concluded that a municipality was authorized to pay for the defense of a former municipal officer charged with an ethics violation which was subsequently dismissed for no probable cause. Payment of such expenses, however, was conditioned upon the city commission determining that the alleged misconduct arose from the performance of the manager's official duties while he was serving a public purpose. The conclusions reached in the opinion were based upon the common law principles discussed in Ellison v. Reid,[5] which concluded:

"There is no doubt a valuable public purpose is served in protecting the effective operation and maintenance of the administration of a public office. If a public officer is charged with misconduct while performing his official duties and while serving a public purpose, the public has a primary interest in such a controversy and should pay the reasonable and necessary legal fees incurred by the public officer in successfully defending against unfounded allegations of official misconduct."

The courts have stated, however, that this obligation arises only when the conduct complained of arises out of, or in connection with, the performances of the officer's official duties and while serving a public purpose. For example, in Chavez v. City of Tampa,[6] a city council member filed suit seeking reimbursement from the city for legal expenses she had incurred in successfully defending a charge of unethical conduct before the Florida Commission on Ethics. The charge arose from her vote as a city council member on her petition for an alcoholic beverage zoning classification at business premises she had leased.

While the council member was performing her official duties by voting and thus satisfied the first part of the test, the court determined that the second part of the test was not met since her vote did not serve a "public purpose," but rather directly advanced her own private interests. Thus, the court concluded that under the common law, the city was not required to reimburse the city council member for the legal expenditures she incurred in defending the charges.

Based on a consideration of these cases, this office stated in Attorney General Opinion 90-74 that if a county determines that the acts alleged in an ethics complaint against a county official arose from the officer's official duties and that a public purpose was being served at the time of such acts, the reimbursement of legal expenses for the officer was permitted. However, the office stated that the determination must be made by the county commission based upon such factual evidence as the governing body may require as such a determination is beyond the authority of this office.

The Supreme Court of Florida, in Thornber v. City of Fort Walton Beach,[7] recognized the common law principle that "public officials are entitled to legal representation at public expense to defend themselves against litigation arising from the performance of their official duties while serving a public purpose." Citing Chavez v. City of Tampa, supra, the Court held that for public officials to be entitled to representation at public expense, the litigation must:

"1) arise out of or in connection with the performance of their official duties

and

2) serve a public purpose."[8]

In Thornber, the officers' legal defense against a recall petition arose from the officers' alleged malfeasance in meeting in violation of the Government in the Sunshine Law and in subsequently voting on the issues at a later public meeting. Since the vote taken at the public meeting fell within their official duties, the Court held that the first prong of the test had been met.

The Court found that the second prong was satisfied as well since "[t]he council members' action in defending against the recall petition also served a public purpose[.]"[9] The Court rejected the city's contention that defending against a recall petition only serves the elected officials' personal interests in maintaining their position. While the city has no interest in the outcome of a recall petition, the Court held that the public does have an interest--and the city has a responsibility--to ensure that the recall petition procedures are properly followed.

While previously the courts had generally considered whether the public official was serving a public purpose at the time of the act on which the litigation was based, the Thornber Court considered whether the litigation served a public purpose. As noted above, however, the Court referred to Chavez v. City of Tampa, supra, as authority for the test.

I am aware of no case law or Attorney General Opinions utilizing these considerations when attempting to determine whether to pay the legal expenses of an officer alleged to have violated a locally adopted ethics code, but would suggest that these tests would apply equally to such a situation. Therefore, it would appear that if the planning commission determines that these ethics code proceedings arose out of or in connection with the performance of the officer's official duties and served a public purpose,[10] the official's legal fees incurred in successfully defending against such action must be paid by the commission. The determination, however, that both prongs of the test have been met is one which must be made by the governing body of the commission and cannot be delegated to this office.[11]

These informal advisory comments are provided to you by the Department of Legal Affairs in an effort to be of assistance. The opinions and conclusions contained herein are those of the writer and do not constitute a formal opinion of the Attorney General.

Sincerely,

Gerry Hammond

Senior Assistant Attorney General

GH/tsh

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[1] See, e.g., Markham v. State, Department of Revenue, 298 So. 2d 210 (Fla. 1st DCA 1974); Ferrara v. Caves, 475 So. 2d 1295 (Fla. 4th DCA 1985).

[2] Nuzum v. Valdes, 407 So. 2d 277, 279 (Fla. 3d DCA 1981).

[3] 423 So. 2d 974, 976 (Fla. 4th DCA 1982), petition for review dismissed, 431 So. 2d 988 (Fla. 1983).

[4] And see Ferrara v. Caves, supra, stating that the town was required to pay reasonable attorney fees incurred by the mayor and town commissioners seeking declaratory and injunctive relief against recall petitions.

[5] 397 So. 2d 352, 354 (Fla. 1st DCA 1981).

[6] 560 So. 2d 1214 (Fla. 2d DCA 1990).

[7] 568 So. 2d 914, 916-917 (Fla. 1990).

[8] Id. at 917.

[9] Id.

[10] And see Maloy v. Board of County Commissioners of Leon County, 946 So. 2d 1260, 1265 (Fla. 1st DCA 2007), review denied, 962 So. 2d 337 (Fla. 2007), ("Under Thornber, a public official is not entitled to taxpayer funded representation simply because an allegation of misconduct arises in the course of his public duties. Rather, the context out of which the alleged misconduct arose must also serve a public purpose.").

[11] See, e.g., Ops. Att'y Gen. Fla. 86-35 (1986) and 90-74 (1990).